Dissecting the legislature’s effort to rig the state judiciary

To the Republicans who run the N.C. General Assembly, the concept of judicial independence – central to our bedrock American principle of checks and balances and to the rule of law – must seem as alien as the one-eyed, one-horned, flying purple people-eater of vintage Top 40 radio.

Yes, it must be a strange concept indeed. Or as the old song remarks, “What a sight to see!”

But in reality, it’s not strange at all. Consider this straightforward pronouncement in the state constitution: “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.”

Each of the three branches of government, according to that tried-and-true model, has its own duties and prerogatives, not to be encroached upon. Yet that hasn’t stopped the legislature from pushing to turn the state judiciary into a partisan cheering section where laws making life even more difficult for the disadvantaged get rubber-stamped – all to further the conservative Republican agenda and maintain the party’s grip on power.

The goal of various bills changing the way judges are chosen – that goal being to boost the chances of Republican candidates – is just as transparent as the reason GOP chiefs have rammed the bills through. Understandably, their efforts to lock in Republican gains through gerrymandering, voter suppression and attacks on the powers of Democratic Gov. Roy Cooper have met with resistance from some judges on constitutional grounds.

Most of that resistance has come at the federal level. But the state Supreme Court, where Democrats have a narrow majority, stands as another potential roadblock. So now the motto of Republican legislators seems to be: If you want to dispense justice in North Carolina, or what passes for justice, you’d better be on our team.

Come one, come all

Cooper on October 9 vetoed a bill that’s likely to have a dramatic impact on the next round of judicial elections. “If the legislature doesn’t like the fact that judges are ruling many of their laws unconstitutional, they should change their ways instead of their judges,” the governor said. The response was along the lines of “Oh, dry up!” as the veto was overridden in a special session on October 16-17.

Senate Bill 656 cancels primary elections for judgeships that would have been held next spring. Instead, voters will choose judges during the general election in November, 2018. Based on past experience, those races will turn into crowded, confusing, expensive free-for-alls. Anyone who meets the statutory qualifications to serve as a judge and who can pay the filing fee will be able to get on the ballot.

Why should this benefit Republicans? For one reason, in statewide races for the Supreme Court and Court of Appeals, Republican candidates favored by the party’s power-brokers generally have been in a better position than their Democratic opponents to attract the kind of money – much of it channeled through shadowy interest groups — needed to run effectively.

A well-funded Republican might have the inside track in raising his or her profile among a pack of contenders battling to get their names and records known. And under the new law, the election winner would simply be the person who emerged from the scrum with the most votes – even if that share was in the range, say, of 20 percent. How’s that for a ringing endorsement from the electorate that builds confidence in the courts?

Republican judicial candidates in fact have been so successful that legislators earlier this year decided to make every race for a judgeship partisan, with party labels included on the ballot. The exception to the rule had been the Supreme Court, but look what happened last fall. Mike Morgan, a Democrat, defeated veteran Republican Justice Bob Edmunds – probably helped by the fact that in another quirk, Morgan’s name was listed first. That gave the Democrats a one-seat edge on the high court. For now.

Lines of influence

S.B. 656’s backers say they’ve cancelled the judicial primary elections that would have been held next spring because they’re in the process of redrawing the boundaries of judicial districts, which poses uncertainty for would-be candidates. While some population adjustments may have been called for, the proposed redistricting is widely seen as a way to put more Republicans on the bench at the trial court level. As if Republican ideology needs to color rulings in every criminal trial, every alimony case, every landlord-tenant dispute.

Even so, justices on the seven-member Supreme Court and judges of the 12-member Court of Appeals (downsized from 15 by the legislature in hopes of strengthening the GOP’s margin of control) are elected statewide, not by districts. So primaries for spots on those courts could have proceeded on schedule – except that wouldn’t serve the Republicans’ purposes.

Nor have we seen the last of this kind of partisan meddling with the courts. S.B. 698, filed during the just-completed special session by Southport Republican Bill Rabon, powerful chair of the Senate Rules Committee, calls for a constitutional amendment squeezing the terms of all judges down to just two years.

In other words, to serve on the bench, a judge would virtually have to adopt another identity as a full-time politician – campaigning, raising money, looking over his or her shoulder at how decisions might become political liabilities.

Two and out?

The proposed amendment, if approved by voters in a referendum, also would set the terms of judges elected prior to next July 1 to expire at the end of next year. So Justice Morgan, to pick a prime example, would be out of a job less than two years after he was elected. Terms now are eight years for all judicial seats except in District Court, where judges hearing lower-level cases are elected for four years.

Rabon wasn’t sharing the rationale for his bill. But his House counterpart, Rep. David Lewis of Dunn, may have spilled the beans.

As reported by N.C. Policy Watch, Lewis said the thinking “would be if you’re going to act like a legislator, perhaps you should run like one.” In other words, Rabon & Co. think uppity judges are making policy decisions, not just interpreting the law, when they uphold constitutional challenges to Republican power-grabs. So put them on a two-year cycle and jerk a knot in them.

Another theory is that Rabon’s bill will pressure judges to acquiesce to a scheme whereby judicial elections were scrapped in favor of appointments. Of course, appointment of judges always has been a better approach, at least conceptually. It allows for careful vetting of candidates and makes the process less vulnerable to infusions of special-interest money. Judicial elections are notorious for how little voters typically know about the contenders.

Still, whether appointment is preferable to election hinges on who does the appointing. The worry is that any such system developed by this General Assembly would put legislators themselves in charge. That’s a recipe for a politicized judiciary if there ever was one.

As to making judges answer to the public every two years, the model is absurd. Yes, legislators – who do serve two-year terms – are supposed to be tethered to public opinion and responsive to constituents’ concerns (although gerrymandering effectively relieves many of them of that obligation). Judges, by contrast, are supposed to run on their character, knowledge and experience – then carry out their duty to uphold the law, not looks for ways to advance party agendas.

All in all, this wide-ranging effort by legislative Republicans to dominate our judicial branch – compromising its independence and impartiality – has been more than even a purple people-eater could be expected to stomach.